Amendments to Customary land laws in Samoa show insincerity of P.M. and H.R.P.P. Government

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Fiu Mata’ese Elisara

A. Deputy Prime Minister of New Zealand, Vaovasamanaia Winston Peters, and as Indigenous Maori, cautioned all Samoans with powerful words of wisdom when he was quoted in the Samoa Observer of 8 April 2018… 

 

“They don’t grow lands anymore...It is wise for Samoans to look very carefully at what happened in New Zealand with regards to foreign investors and ownership of their lands....I commend the Island peoples for standing up for themselves....commend people who are fighting to ensure land rights remain with traditional land owners...”

 

At the outset, I humbly submit these further views to support a number my past assessments on the topic in this write-up. As a simple Matai from the village of Sili Savai’i I continue to present these comments from the standpoint of an ordinary citizen of Samoa. I am not a lawyer with no legal training and admit that my comments could be rightly attacked as legal naivity. 

However, I continue to openly share my concerns on the ongoing attempt by the Prime Minister and his H.R.P.P. Government to change and amend legislations on customary lands that in my view renders customary land ownership lost from Samoans who are heirs and rightful owners. This violates the Constitution and therefore repugnant to the Supreme Law of Samoa. These views are shared by others who have subscribed to these concerns. 

Sadly in our assessment the maze of changes, amendments, and approving new customary land laws over the last twenty or so years have done nothing but add to confirm our concerns on the insincerity of the Prime Minister and his H.R.P.P. Government in their attempt to appease the Samoan peoples that notwithstanding these legislations their customary lands continue to be protected under the Constitution.

Last Saturday, I joined and spoke at the S.S.I.G. peaceful first ever protest march in Salelologa Savai’i to share with those who joined what I believe are the real dangers the customary land laws passed by the H.R.P.P. Government pose on customary land ownership. 

I also addressed in the short time given to me possible ways to reverse it. For me, the right information that envelops holistic and full awareness is always invaluable. Any effort to inform our peoples on both the benefits and risks can only be positive to ensure our people are fully aware, adequately informed and catalyze them to make clear and informed choices. 

Sadly, it is unfortunate that many take these actions as dissenting voices to Prime Minister and his H.R.P.P. Government when these are people taking up their rights to voice concerns on proposed and ongoing detrimental policies, laws, and activities of government. As long as these rights-holders’ voices are prudently structured, visionary constructive, socially balanced, and politically neutral, they can only be invaluable as part of our collective responsibilities to contribute to the much needed transformational changes arguably the Government need. It is indeed an inherent component of accountable democracy!   

I have written before to sound out government on their leadership responsibility to ensure they not only promote the benefits of development initiatives, but more importantly the risks which for me is the more relevant and pivotal information for the people of this country to better align because they are the ones who will inevitably shoulder the burden of the impacts of developments and national policies emanating from government. 

These calls have unfortunately been ignored, but their inaction should not be a reason for us to stop holding our government to account. It is imperative! It is a call for all of us to try and help government integrate some balance to their hell bent focus on sustained economic growth at the peril of a balanced treatment and respect for the other pillars of sustainable development - social equity, ecological integrity, and cultural diversity. 

Personally, I have said time and again that we need to go beyond the L.T.R.A. 2008 and attempt to remind all Samoans why the collective wisdom of our forefathers who authored the Samoa Supreme Law under Article 109 of the Constitution! This requirement for referendum, is now even more non-negotiable! 

We assert that the right and only forum to decide on customary lands issue is as our forefathers and framers of the Constitution dictated under Article 109 through the imperative of a REFERENDUM. Let the people decide! And an independently conducted referendum process without political influence, with clearly articulated questions, associated international integrity checks, secured principles of accountability, and ensure free prior and informed consent of all Samoans, is the only way this customary land discourse can be and should be addressed.

 

B. Context of the Discourse:

Reports are available to show that in 1998 Asian Development Bank (A.D.B.) threatened the government that A.D.B. would stop lending money to the financial sector unless Samoa agreed to two conditions. First, privatize state owned enterprises (S.O.E’s). Second, pass laws allowing mortgages against customary land. 

To comply with the first condition, the Prime Minister and his H.R.P.P. Government responded positively and here are just some fifteen (15) S.O.E’s that have been privatized and emanated from that commitment – Development Bank, Electrical Power Corporation, Land Transport Authority, Polynesian Airlines (Now Samoa Airways), Public Trust, Samoa Airport Authority, Samoa Housing Corporation, Samoa Land Corporation, Samoa Ports Authority, Samoa Post, Samoa Shipping Corporation, Samoa Shipping Services Limited, Samoa Trust Estate Corporation, Samoa Water Authority, Unit Trust. 

The primary reason for this A.D.B. conditionality was to commit the Prime Minister and his H.R.P.P. Government to turn into private sector those public bodies that used to provide readily accessible and affordable social, livelihood and development services to the peoples of Samoa. 

For the Samoan peoples that was and continues to be the fundamental expectation and reason they elected their respective Members of Parliament. Clearly, this first imposed condition is A.D.B. telling the Prime Minister and his H.R.P.P. Government that its public goods service mandate for its citizens cannot continue! It fails its corporate business models driven by profits, making money! 

The parallel pressure on a small island country like Samoa from Institutions like World Bank and donors that render financial assistance to our country, becomes far too powerful to reject and the Prime Minister and his H.R.P.P. Government succumb to the enmeshment. The contemporary and related social, financial, livelihood, cultural and other burdens shouldered by our peoples from the impacts of these decisions are very much evident today and can best be assessed through asking local communities and village peoples themselves.       

As for the second A.D.B. imposed condition to pass laws that allow customary lands to be mortgaged and used as collateral and security for investors, this has and continues to be problematic for Prime Minister and his H.R.P.P. Government. Despite making the commitment to A.D.B. in 1998, the delivery pathway has been found to be quite challenging and in fact worsening. Not as easy as they desired! It has now taken some more than twenty (20) years!  We can understand the dillema and real frustrations the Prime Minister and his H.R.P.P. Government are facing! It shows!

It is this second condition that I am attempting to address in these following comments and again I do it from the standpoint of an ordinary Samoan citizen.  

 

C. Let me start with a few relevant Articles of the Supreme Law of Samoa – The Constitution of the Independent State of Western Samoa 1960:

i. Article 2: The Supreme Law  - (1) This Constitution shall be the supreme law of Western Samoa. (2) Any existing law and any law passed after the date of coming into force of this Constitution which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.  

This is very clear reason why I continue to advocate L.T.R.A. 2008 is a law that is inconsistent with the Consitution and renders it void! Unconsitutional! The supportive Customary Land Advisory Commission Act 2013 (C.L.A.C.), the latest 2017 amendment 52 years later of the Alienation of Customary Land Act 1965, the Unit Titles Act 2009, and other legislations affecting customary lands passed after 1960 all smack spirit, intent, letter, language and content of inconsistency with the Constitution rendering them in my view, VOID!  

 

ii. Article 15. Freedom from discriminatory legislation – 

L.T.R.A. (25)(4)(ii) violates this Article of the Constitution by discriminating against Samoans favoring those in Samoa and discriminates againt Samoans residing outside of Samoa. When some 30% of the economy of the country is funded from remittances and resources sourced from the Samoan diaspora this violation does not make political or economic sense. Other legislations such as those that relate to National Elections in my view also violate this Article of the Constitution but I wish only to focus on a few that relate to customary lands. 

 

iii. Article 102: No alienation of customary land - It shall not be lawful or competent for any person to make any alienation or disposition of customary land or of any interest in customary land, whether by way of sale, mortgage or otherwise howsoever, nor shall customary land or any interest therein be capable of being taken in execution or be assets for the payment of the debts of any person on his decease or insolvency: 

 

Provided that an Act of Parliament may authorise- 

(a) The granting of a lease or licence of any customary land or of any interest therein 

(b) The taking of any customary land or any interest therein for public purposes 

 

Article 102 has been the primary focus of the Prime Minister and his H.R.P.P. Government since 1998 in relation to their second commitment to A.D.B. and W.B. to allow mortgage of customary lands. It is also the most contentious. Interesting however, H.R.P.P. Government deliberately avoided the defining Article 109 of the Constitution that dictates the imperative for Referendum as pre-requisite to Article 102. See my comments on Article 109 below. But much has been written and said to defend the Prime Minister and his H.R.P.P. Government enacting the controversial Lands Titles Registration Act 2008 (L.T.R.A. 2008) which introduces the Torrens System of Land Titles Registration (Torrens) in Samoa. Ongoing concerns on this forced the Prime Minister and his H.R.P.P. Government to amend it agin seven years later in 2015. It was also reason they passed the Customary Lands Advisory Commission Act 2013 (C.L.A.C.) where a number of its sections have been retrospectively inserted in the A.C.L.A. 1965. I have made comments on these separately below.   

The Taking of Lands Act 1964 (T.L.A. 1964) was the Act of Parliament that responded to Article 102 (b) enabling the taking of any land, customary land included, or any interest therein, for public purposes. The question that still needs to be answered in repect of this Act is how much customary lands is enough, warranted and justified to be taken by government for public purposes. The other contentious issue here is on valuation of customary lands requiring an adequate and fair compensation basis to fairly pay owners of customary lands when their lands are taken for public purposes under this Act. This has been a challenge in the past when valuation of freehold land had a clear basis through its active property market whilst customary lands on the other hand, by the very nature of alienation and sale prohibition of the Constitution, renders it rather difficult to find an adequate basis for valuation. I personally consider customary lands as invaluable and cannot be valued in monetary terms. But the Salelologa customary land case of 2004 provided some guidance.     

The case of Salelologa posed valid concerns on justification as to how much customary lands is warranted and justified to be taken under this T.L.A. 1964 for public purposes. It brought to light the discourse on valuation of customary lands. Some more than 2872 acres of customary land was taken originally by proclamation under the T.L.A. 1964 for The Township of Salelologa. Part of this land was later reversed attributed to consideration of valuation of customary land. A court case which was appealled caused some more than 2439 acres of customary lands ‘returned‘ as customary lands being no longer required for the purpose for which it was taken originally for public purposes. Some 433 acres of customary lands was ultimately accepted by the Court of Appeal for the public purpose of Township of Saleologa allegedly based on its attempt to give customay land equal and comprable value to that of freehold land and subseqent assessment of ‘compensation‘. 

Time and space is inadequate here to delve into resulting social injustice, violation of customary land owners rights, serious conflicts within Saleologa village, culture and faa-Samoa being determined by the Courts, what defines pule fa’a Sa‘o (pule-soalaupule vs pule-pule-tutu) over customary land, and imminent legal challenges where customary lands ‘returned‘ have been subdivided and ‘sold‘ as ‘freehold‘ lands by Salelologa. These remain interesting and forsee attempts for resolution in the future could lead to social, cultural, and possible problems when those who paid huge moneys for ‘customary lands‘ that they cannot register as owners lay claims to land they bought. I could see this situation to likely envelop a ‘political resolution‘ that could inevitably lead to further loss of customary lands being converted to ‘freehold‘ land. We will see.          

The Alienation of Customary Lands Act 1965 responds to the requirement of Article 102(a) of the Constitution allowing the granting of lease or license of customary lands or of any interests therein. Herein I want to address its direct link to Article 109 of the Consitution in relation to the double entrenchment and pre-requisite for Referendum when alienation of customary lands is a likely intent and result. And this is pivotal!    

 

iv. Article 109 - Provided that no bill amending, repealing or adding to the provisions of Article 102 or the provisions of this proviso shall be submitted to the Head of State for assent until it has been submitted to a poll of the electors on the rolls for the territorial constituencies established under the provisions of Article 44 and unless it has been supported by two-thirds of the valid votes cast in such a poll.

 

In sum, this clearly states NO Laws affecting Article 102 (No Alienation of customary lands) SHALL BE SUBMITED TO THE HEAD OF STATE FOR ASSENT UNTIL IT HAS BEEN SUPPORTED BY A REFERENDUM. The capital letters are mine. But here, I am seriously questioning the role and legal implication of both the policy adviser (Prime Minister) and legal adviser (Attorney General at the time) in submitting the LTRABill to the Head of State for assent and signature when knowingly Article 109 prohibits it UNLESS and UNTIL a Referendum has first been carried out given that clearly Article 102 on customary lands is being targetted. I submit that the abject concerns on who is responsible for L.T.R.A. and demise we now face on customary lands need to be properly addressed! I have alluded already to ‘Context‘ that could help direct us to a balanced and fair assessment and reference.  

 

D. I now wish to make these general and specific comments on L.T.R.A. 2008 that have been also the assessment of other legal experts.

The debate about customary land tenure and economic development has become rather heated. Some argue that Customary Land tenure is a barrier to development and assert that no country in the world has developed without individual property rights and Institutions such as the World Bank, A.D.B., and others have promoted registration of private property rights in the Pacific and have called for reform of land tenure in the developing countries. Not just Samoa!

Many of us however argue that the flexibility of customary land tenure allows Society to adjust to the changing demands of contemporary circumstances and seek ways that can increase tenure security without destroying the social fabric underlying customary land tenure. The economic development underpinning of L.T.R.A. 2008 is an affront to principles and essence of customary lands ownership as these were not subject to registration before it. Whilst many claim that customary land tenure is a constraint on Samoa’s economic development and urged change through the introduction of the Torrens land titles registration system others like myself continue to argue that customary land tenure systems provide ‘life-time’ security for all members of Samoan families, whether they live and work on the land or not, and fundamental to Samoan Society!

L.T.R.A. 2008 presents many more problems than the Lands Registration Act 1992/1993 which has since been repealed (Section 94) with registration functions assumed by L.T.R.A. 2008 (Section 96). Samoa launched in 1999 the Infrastructure Asset Management Programme to  “enhance  the  economic,  environmental  and  social  sustainability  of  transport  and  coastal  infrastructure assets”. A review of customary land tenure was undertaken and the wider community reacted very strongly against the proposition of  registering  customary  land. As customary land tenure adviser for the program, I vigorously  defended  customary  land  tenure, resulting in my tenure in the program terminated. The  government subsequently took the rather suspicious action to amend the  Land  Titles Registration Bill just before its third reading in Parliament! It was a political attempt by the Prime Minister and his H.R.P.P. Government to save face and effort to try and reassure Samoans that the introduction of the Torrens system of title registration would not affect customary land ownership. 

 

 

 

For an eleventh hour insertion to a key legislation that affect customary lands and failed the pre-requisite requirement for Referendum, the discourse today is clear evidence of its result. 

Obviously, this has not worked! The concerns are worsening and objections to LTRA2008 calling for it to be repealed lableling it unconstitutional has taken a life of its own around the world through the Samoa Solidarity International Group (SSIG). For myself and others, we are promoting the considered view that the Article 109 imperative for Referendum provides the best only viable solution to the discourse. Go back to the owners (Suli) of customary lands for their advice. Ask them! That is the solution the visionary framers of our Supreme Law dictated! Who dares not heed it?  

 

E. Here are some relevant analysis and questions that are further supported by legal experts that need answers to better understand the nature and substance of the LTRA discourse on customary lands: 

 

a. Section 7 Indemnity of officers – The Registrar and any officer of the Ministry are not liable to any action or proceedings for or in respect of any act or matter done or omitted to be done in good faith in the exercise or intended exercise of his powers under this Act or any order or regulation made thereunder. (Also Secton 98)

 

One wonders about the justification of this protection of Registrar and staff of the Ministry in any actions that challenges the integrity of LTRA when they are legally protected here. How is the term “…done in good faith…” assessed and checked? This could present a case as has happened already in Samoa and other Pacific countries where the ‘stroke of a pen’ amending or change names or details in the Register could render customary lands lost forever! How can there be accountability ensured in cases of fraud, deliberate actions to change details in register, and incompetence justify protection under this Section for Indemnity?  

  

b. Section 9(2) of the LTRA 2008 specifies that “the Registrar may also include in the Register” adjudicated customary land. 

I ask, after registration under LTRA 2008 of LTA 1981 adjudicated customary lands, will these remain as customary lands or by virtue of recording/registration in the Torrens system of title registration will these convert to ‘freehold land’? This is far from clear! Even with the LTRA Amendment in 2015 that tries to clarify ‘recording’ of customary lands and ‘registration’ of customary land leases, they are both nevertheless actions under LTRA 2008 subjecting these to ‘indefeasibility’ of title and fee simple ‘freehold’ properties. The problem here is over the many years of Lands and Titles Court decisions directly affecting customary lands, these adjudicated customary lands registered under LTRA2008 become exposed to the real danger of being turned into freehold land, thus lost forever to customary land owners! For me, despite assurance from legal advisers to HRPP Government, there is a real risk that all the adjudicated customary lands will be converted into freehold land over time without a change in the substantive law.

 

c. The LTRA 2008 confirms that it is lawful for the Registrar to register a trust instrument in respect of 

any customary land under the LTA 1981 but this runs amok as registration of trust with respect to customary land runs against the three principles of Torrens – mirror, curtain and compensation principles. 

I submit the practical effect of LTRA 2008 Sections 32 and 33 is alienation of customary land which breaches the Constitution, thus illegal. And the bona fide purchaser’s title under Section 32 that secures registered proprietor title as paramount is still unimpeachable. If the Aiga lose their land, they will not be able to get it back! The only possibility of redress would be to get government compensation! The point here is adjudicated customary lands should never be included in an Act such as LTRA 2008 (recorded or registration of leases/licenses) where indefeasibility of title is the mandate. 

 

d. Customary land is invaluable to Samoan Society and cannot be measurable by money. Although the LTRA 2008 adheres to the compensation principle the adjudicated customary lands will not be covered in most cases where Section 79 (2) (e) specifies that loss or damage arising from the breach by a registered proprietor of any Trust despite what I have said already cannot in fact be compensated by the Government. 

Even if the Registrar registers the Trust the beneficial owners will not be compensated if they lose their land through the operation of LTRA. Since the only protection of the Aiga’s interest is through the registration of Trust, the rejection of compensation from breach of Trust deprives them of their rights altogether. Thus the Aiga may be left without redress and the best hope for the Aiga is if the Trust is made an overriding interest on the legal ownership. The LTRA 2008 does not provide for that. 

 

e. Section 35 of LTRA 2008 is the other provision that pushes customary land owners to lose their land as according to Section 35 (2) even if the mortgagor of the land has been registered as proprietor through fraud or error the bona fide purchaser or mortgagee still has unimpeachable title. 

For me, this means that even if the above detriment to customary land owners is well safe guarded against, a further transfer will deprive them of their land. Even under a well-established Torrens system the development of indefeasibility of title allowed the statutory protection mechanisms to be subverted by the simple device of selling the property to a third party. I ask, What of privity of estate? LTRA 2008 does not have a coherent protection mechanism to match its substantive law and the application of indefeasibility will arguably destroy the customary land owner’s interest more quickly than in places like New Zealand. 

 

f. The Inappropriateness of Applying Torrens to Customary Land according to some legal experts is such that even if the LTRA 2008 is capable of a different interpretation and registration of adjudicated customary land the meaningfulness of the registration is in doubt. 

The most important merit of the Torrens system is that it makes land dealing simple, cheap and certain as this promotes mobility in land transfer. It was therefore recognized that the main advantages of the Torrens system are in situations where land is being freely bought and sold. On one hand, the facilitator of cheap and speedy transactions weakens the protection of inalienability of customary lands. On the other hand, the inalienability of customary lands renders the application of Torrens to customary land meaningless, being incompatible due to their respective characteristics. 

 

The argument that the Torrens system is merely the instrument by which a policy can be effected was right and has gained support. The Prime Minister and his HRPP Government continues to deny its intent to change the present laws concerning customary land tenure. It asserts that the main purpose of LTRA 2008 is to change the registration system which was part of the ongoing Government reforms to assist landowners strengthen the administration of their land and improve the security of their titles. The main purpose of improving security of title is to enable land owners to obtain loans for development by mortgaging their land. However, the discussion about securing loans simply ignores the fact that customary lands cannot be mortgaged in Samoa unless the Constitution is amended! This is a key point! And only when the requirement of Article 109 if first met, REFERENDUM! Ask the owners (suli) of customary lands! That means Samoans in Samoa and those living outside of Samoa! There must be no discrimination!

 

g. Section 46 of LTRA 2008 clearly states that Property Law Act 1952 apply to mortgages under this Act. As I understand it, this means Part 8 of LTRA on Instruments specifically Sections 44 to 50 of LTRA on morgages take on the interpretation that a ‘mortgage entails an actual transfer of property rights’ especially now that LTRA Amendment 2015 confirms that customary land leases and licenses are actually registered under LTRA. 

The result is the customary land owner can only repossess those property rights if and when the investor to whom the customary land is leased is able to pay off the mortgage. This could take years! From the perspective of the owners of customary lands this is tantamount to alienation and contravenes the Constitution. Furthermore, should there be benefits from the leased land that the customary land owners could rightly claim, the fact that their property rights have already been transferred prevents them from accessing that benefit. Again it contravenes the Constitution! 

 

Also, if the bank, to which the customary land lease is mortgaged, exercises its rights to transfers the mortgaged customary land lease to another client to secure return of its investment, what happens to the rights of the customary land owners? Again I ask, what of the privity of estate? How about the privity of contract given that I understand even the Alienation of Customary Lands Amendment Bill 2017 now before Parliament continues to ignore the controversy over concerns by customary land owners to remove the Minister from signing customary land leases!      

 

F. Now I submit these quick but important questions that I have continually asked on the Alienation of Customary Land Act 1965 (ACLA1965) and the Customary Land Advisory Commission Act 2013 (CLAC2013). Also on the latest  Amendment Bill 2017 to ACLA1965 only now put before Parliament some 52 years later: 

The ACLA 1965 has been amended not only by CLAC 2013 and by the latest Amendment 2017 Bill which is currently before Parliament. From reading the CLAC2013 and seeing the draft Amendment Bill 2017 these are questions that I would welcome answers:

  

1. Why call it ‘Alienation‘ of Customary Lands Act 1965 and even now in the 2017 amended Bill some 52 years later continue to call it “Alienation“ of Customary Lands Amendment Bill 2017 when the Constitution is clear customary lands cannot be ‘alienated‘?

 

2. The Deeds systen of land registration in 1965 was consistent with the spirit of the Constitution and in fact the ACLA1965 in regards the inalienability of customary lands under leases and licenses. The ACLA1965 did NOT allow ‘alienation‘ or ‘disposition‘ of customary lands as the true owner‘s title was protected under the Deeds system. However, the ‘recording‘ of customary lands and ‘registration‘ of customary land leases under LTRA2008 subjects customary lands to its ‘indefeasibility‘  principle! This is not only repugnant to the Constitution but contrary to the protection enshrined in the original ACLA1965 through the Deeds System

 

3. Why continue to have the Minister sign the customary land leases? Despite serious concerns about this in the original ACLA1965, the Amendment Bill 2017 continues to ignore the 52 years of concerns and controversy, and still have the Minister sign as trustee for customary land owners. The related process where no obligataions is mandated to Minister to consult custoamry land owners, rentals are paid to the Ministry and not customary land owners, and government retaining its share of the renst, etc. continue to be a bone of contention.

 

4. CLAC Act 2013 was to establish the Customary Land Advisory Commission to encourage, facilitate and promote greater economic use of customary land for the purpose of enhancing the social, cultural, economic and commercial development of Samoa and for related purposes. Its functions and powers under Section 6 are very broad and expansive and HRPP Government wanted CLAC to be the ‘One Stop Shop‘ for all matters to do with customary lands! 

 

I ask, If CLAC was this important and fundamental to the ‘One Stop Shop‘ vision of the Prime Minister and his HRPP Government in respect of the utilization, management, registration, advice, and contribution of customary lands to the economic development of Samoa - Why was it not given a budget to implement its targetted work? Why was the Commission only given 7 years (Parliement could extend it for another 7 years) to exist if it was fundamental to customary lands? What kind of consultations powers given to CLAC when Article 109 of the Constitution was never part of its radar? 

 

I say this because the USD$250,000 secured from our complaint to ADB gave CLAC funds and resources to implement any of its work in the last two years! And when only 341 people in Savaii were ‘consulted‘ in just three meetings at the cost of $31,000, this makes a mockery of CLAC itself, its so-called Functions and Powers, and indeed questions the sincerity of HRPP Government for etablishing CLAC. Clearly the number of people ‘consulted‘ fails miserably the test for meaningful consultation we insisted as complainants! 

 

5. Section 12 of CLAC2013 is on Exemption from liability – This yet again clearly removes accountability and indemnifies HRPP Government and its officers from possible wrong doing, incompetence and fraudulant acts under this Act. Those who are supposed to manage, implement, maintain, monitor, and ensure the integrity of the Act are given a free ride without any sense of accountability because this Section states -  A commissioner, staff or any other person engaged or required to carry out a function, duty or power under this Act is not personally liable for any act done or omitted to be done in good faith when carrying out the function, duty or power under this Act.

 

6. Section 15: Note – This is a strange and interesting one! Several issues arise. First, it is the mortgage of the interest of customary land lease and customary land licence! NOT mortgage of customary land lease or customary land license! Also‚ interest in customary land lease or license is not defined in Constitution, ALCA 1965 or even in this CLAC Act. What CLAC attempts to do in my view is NOT to define but rather clarify for the first time that an interest in customary land lease includes a mortgage! Clearly the elephant has already usurped the customary land tent! This is contrary to what the Constitution forbids! Consequential amendment - Section 4 of the Alienation of Customary Land Act 1965 is amended: (a) by renumbering the current provision as section 4(1); (b) by adding the following new subsections: “(2) For the avoidance of doubt, an interest in the lease or licence of customary land that the Minister can grant by subsection (1) includes a mortgage of the interest of the lessee or licensee.

 

7. Interesting and confusingly for me as an ordinary Samoan citizen, HRPP government then add sub-

 

8. paragraph Section 15(4) - Nothing in this Act may be construed or implied: (a) to permit the alienation or disposition of customary land in a manner prohibited by Article 102 of the Constitution; or (b) to permit or deem ownership in any customary land to vest in a person otherwise than as determined under any law dealing with the title to customary land.”. Sadly for me, this fails to stack up!

 

G. Conclusion:

Let me quote again the visionary comments of Vaovasamanaia Winston Peters – “They don’t grow lands anymore...It is wise for Samoans to look very carefully at what happened in New Zealand with regards to foreign investors and ownership of their lands....I commend the Island peoples for standing up for themselves....commend people who are fighting to ensure land rights remain with traditional land owners...”

Let me also repeat what I have said above – “…we need to go beyond the L.T.R.A. 2008 and attempt to remind all Samoans why the collective wisdom of our forefathers who authored the Samoa Supreme Law under Article 109 of the Constitution! 

This requirement for referendum, is now even more non-negotiable! We assert that the right and only forum to decide on customary lands issue is as our forefathers and framers of the Constitution dictated under Article 109 through the imperative of a REFERENDUM. Let the people decide! And an independently conducted referendum process without political influence, with clearly articulated questions, associated international integrity checks, secured principles of accountability, and ensure free prior and informed consent of all Samoans, is the only way this customary land discourse can be and should be addressed.

My personal appeal to the Prime Minister and his H.R.P.P. Government, the sad history is already ‘written‘ on your direct responsibility and role in allowing our customary lands to be lost forever and force the peoples of this country to ultimately be renting on their own lands! The maze of legislations your government enacted failed to protect your intent as I have tried in my relatively short write-up above and in a number of my submissions in the past years. There is a lot more to said but time and space here does not allow it. 

Please do the right thing! Reverse your commitment to A.D.B. and World Bank made in 1998! Take out customary lands from L.T.R.A.! If however you insist on this pathway, Comply with Article 109 of the Supreme Law! Ask the people (Suli)! Do the REFERENDUM! That is what our forefathers vision and directive dictate of us! 

You alone can rewrite this history and be a HERO for your children, your peoples and your country! 

© Samoa Observer 2016

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